Different topics dealing with Jewish Philosophy, Jewish History, the Weekly Parsha and Other Ideas. Please comment, I would love a good discussion. If you have problems posting, please e-mail me at jsmith11085@gmail.com. Translations are my own unless otherwise stated. Please, correct me if I am wrong.

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Tuesday, September 10, 2013

Autopsies In Halacha

Since I am a pathology resident, I do a fair amount of autopsies (50 are required to graduate). Therefore, it was incumbent upon me as an orthodox Jew to look into the legal challenges with this subject. I have become accustomed to ask my questions to Rabbi Tendler, but since I was reading through the Nishmat Avraham and I found this paragraph I thought I would share:

and here are the sources:

The previous pages of the Nishmat Avraham go through why it is forbidden to perform an autopsy on a deceased Jew. He quotes one opinion that it is allowed for learning medicine, but firmly brushes that opinion aside and says it is irrelevant since most opinions say it is forbidden. He goes on to say how even if the person himself, let alone his family, requests an autopsy or donates the body to science since they do not have ownership over their body their words are meaningless and an autopsy may not be performed.

The only time an autopsy may be performed is when it will somehow save a life. (Most, if not all, autopsies are not done to save lives.)

The reason I find this specific paragraph intriguing is because the law in the Shulchan Orech (Yoreh Deah 349:1) which all of this is derived from equates a Jewish corpse and a non-Jewish corpse. Why then are there so many special rules by a Jewish corpse, but a non-Jewish corpse can so easily be used?

I have not looked through all of the sources since I am limited with my referencing materials. However, using Hebrewbooks.org I was able to find a good Shulchan Orech, Yoreh Deah that had many commentaries. There, I was able to find the Pischei Teshuva on this halacha (Yoreh Deah 349:1) which gives a foundation to the seemingly lenient opinion by non-Jews, but the much stricter opinion by Jews. It says that the prohibition that one may not benefit from a Jewish corpse is biblical, but not benefiting from a non-Jewish corpse is only rabbinically prohibited.

This actually helps explain HOW one could be allowed to perform an autopsy on a non-Jewish corpse when there is minimal reason and a Jewish corpse would need a maximal amount of reason, but I still need to understand WHY it should be that one is biblically prohibited and one is only rabbinically prohibited. I hope to translate one or both of Rav Moshe Feinstein's Responsa on this subject in the coming days.

7 comments:

Anonymous
said...

Hi, The issue is that it is clear from the din in the gemarra that a met yisrael is assur b'hanaah, but the rishonim are mesupak if a met akum is also. Look in the beit yosef on this subject, and if you can, there are teshuvot in the rishonim on the exact subject (Check the Teshuvah of the Rashba cited in the Bedek Habayit especially). Also look at the Mishneh L'Melech on the side of the Rambam (14th Perek of Avel, towards the end) who discusses the Rashba's position and esentially proves from the Yerushalmi (6th perek of Shabbat, again not sure exatly where, ayin sham) that a met akum is mutar b'hanaah. If you can manage to find a Yair Ozen by the Chida (not an easy feat nowadays) he proves that the Rashba was aware of the Yerushalmi and only writes to the contrary in his teshuvah for shakla v'tarya. Thus, it would seem that basically nobody in the rishonim holds that a met akum is assur b'hanaah m'dina, and even though many of the rishonim write otherwise, it is only b'derech chumra b'alma. (They didn't have autopsies in those days, and I heard from someone that the reason the rishonim were machmir is because in the middle ages there was a good deal of graverobbing in egypt and in every marketplace in sfarad and france, you could buy mummy parts for medicinal purposes, as well as the tachrichim of the mummies, which were usually quite expensive jewels, etc. and the rishonim didn't want jews entering that business. Sounds a bit fantasatic to me, but it could be plausible) Although there are acharonim who seem to think otherwise, like the Shevut Yaakov, (the first volume, can't remember the siman, sorry!) who holds that m'dina the met akum is assur b'hanaah, it's only if somehow the jew legitimately owns the body that it would be mutar (the akum's relatives sell the body or the akum himself leaves it to the jew after his death). Also, look in the Sdei Chemed under Maarechet Mem for a good summary of the shitot and the topic. Bottom line - everyone agrees that m'chumra of the rishonim, a met akum is assur b'hanaah just like a met israel. The issue is when we waive that chumra - some are of the opinion that it is only when the body is legitimately acquired and some are of the opinion that if the nochrim are noheg to have hanaah from their metim, the hanaah is mutar to us as well, even if we just find the body or something. End of the day, modern medical school would satisfy even the machmirim on this issue - the medical school owns the body and is allowing the jew to do an autopsy (Whether the autopsy is actual hanaah is another issue, and if there's a seperate chiyuv to bury a met akum, which you are mevatel is another issue - although suffice it to say that most wouldn't require a jew to steal the body from nochrim to bury it. It's only an issue for Israeli medical schools, since they own the bodies) and there's a tzad mitzvah. (also a very dachuk svara but since the issur is only m'taam chumra, we tend to be meikel) Thus, when in comes to a met akum, it's bfeirush in the yerushalmi that they are mutar b'hanaah. There are more issues, such as whether there is a chiyuv to bury the body of a meit akum (In Sefer yehoshua, he buries dead cananim the same day, and some rishonim pick up on this and are medayek from the lashon that he does so al pi din.) but that usually only comes up in Israeli medical schools.

I'm only writing this to provide you with mareh mekomot and some of the sevaras involved, i do not mean to give you a psak here. Consult a qualified moreh horaah for all these issues.Best,בקי בודד

I stand corrected about the mummy thing - it might not be the reason for the chumrah in the rishonim, but people defintitely ate mummy parts, even in the time of the early acharonim. My mind is blown - Look in the pitchei teshuva right under the one you cited - He cites a teshuva of R' Yosef D'Trani that one can eat mummy parts. (I assume for refuah.) I don't have the teshuva in front of me, so I can't say for sure. However, the Pitchei Teshuva you cited (That met nochri is assur m'derabbanan) I don't think is the understanding in later acharonim, although it might be how the mechaber paskins. I apologize I don't know more off the top of my head, I'm only 24! I would love to really be mechaker every shita and lay it all out k'sidran but that would involve finding a lot of rare sefarim (a feat here in LA) and more time than I currently have.As far as taamei hamitzvot goes, it's learned out from a drasha in the gemarra that a met yisrael is assur b'hanaah. The drasha doesn't include met akum. I can't tell you what hashem was thinking, but maybe in metzudat david by the radbaz there's something, or some of the other taamei hamitzvot sefarim. (Usually, though, those sefarim don't give taamim to the pratei halachot, so you might be out of luck.)Best again,בקי בודד

Thanks for the sources. I am probably just going to read Rav Moshe's responsa about it. It seems to be pretty well laid out in the encyclopedia of Jewish medical ethics, the different opinions, (http://books.google.com/books?id=aaklGZAID08C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q=autopsy&f=false), as well as the Nishmat Avraham.

Also, even though there were no "official" autopsies, I believe the practice of cutting people up to see what was inside them was rampant, at least in the middle ages. That is where they get the idea of the four humors in the body, because people would perform "autopsies" and view and even taste (gross) the fluids in the dead body.

End of the day, I would like to understand the reasoning behind why there should be a difference between a Jewish dead body and a non-Jewish dead body. I believe Rav Moshe gives an answer. Problem is, I have to make time to read the whole teshuva.

I read the Mishna Lamelech. I feel like you misrepresented the argument a little. He doesn't understand why the Ritva, Rashba and Raah hold that a non-Jew's body should be asur hannah since the Yerushalmi, according to him, says it is mutar. I am not comfortable saying it is just a chumra. But maybe you saw it somewhere else.

i'd need to check again when i get in front of a rambam, but it could be that i mixed up what the acharonim write into my recollection of the mishneh l'melech. but while i'm still shooting from the hip, i think, if i remember correctly, that the mishneh l'melech brings several proofs from the yerushalmi that met akum is mutar, and is medayek from the lashon of the rambam in several places that he holds like this. (Also there's something about David Hamelech, I don't remember what) But he is mesupak if the rashba really holds like his teshuva, because he writes in bava kama the opposite. I can't think of one acharon who disagrees with the way the mishneh l'melech reads pshat in the yerushalmi - and again, it's a pele why the ritva and others hold the way they do if the yerushalmi says what everyone thinks it does. The Chida is maarich on the problematic teshuva of the rashba, and concludes that the rashba really holds that its mutar b'hanaah. The Gra holds the same way. If that is the case, then the rambam, the rashba, the yereim, and the baalei hatosafot and rashi all agree (again, according to the mishneh l'melech) that it's mutar b'hanaah. According to the maggid mishneh in maachlot asurot, you can add the ramban to the list. If so, it's a pele why maran writes that met akum is assur b'hanaah. Most of the acharonim assume that this is a chumra imposed by the rishonim, since it seems most of them hold that m'ikar hadin it's mutar. I don't have the maharit in front of me, but I don't know of anywhere else where it's assumed there's an issur me'darabanan - it could just be a compromise shita he comes up with. As for the reason, again, it's learned out from a hekesh "sham" "sham" from eglah arufah that tachrichei meit are assur b'hanaah. If the tachrichim are assur, kal v'chomer the met is assur. As for why this should not be so with the akum, it's simple - we have a yerushalmi that says met akum is mutar b'hanaah. Thus, the drasha must be limited to tachrichei met israel, and the kal v'chomer can only incude met israel, not met akum. There's nothing intrinsically different about the bodies, as evidenced by the fact that we make no chilukim by achilat basar adam and dam adam and chalav adam. And if met akum is assur b'hanaah me'derabbanan, then say its a gezeira atu achilat basar adam, or a gezeira atu hanaat mimeit yisrael. The only problem is that the gemarra never says like that, and the yerushalmi in fact says the opposite. (Maybe you could say that the amoraim in bavel got together and voted to assur met akum, and then didn't write it in the gemarra, and then a minority of rishonim had a kabala, or just happened to guess right? dachuk k'tzat) It's just that the torah wanted to assur met israel from hanaah, but not met akum. If you want to speculate - say it's because the torah says we should treat our dead with extra respect, and what the amim do with their dead is their business, but we don't have to treat their dead with more respect than they do. That seems as good a reason as any.

Also, be careful with your language, the word "misrepresented" came off a bit hostile, like what I wrote is a ziyuf or something. Say you think I might have read it mistakenly. I'm sure it's just a misunderstanding, I won't hold it against you.בקי בודד

Didn't mean to offend, just pointing out that the way you put it made it seem like there really are no rishonim that hold meis akum is asur bihana. The rashba aside, there still is, at least, the raah and ritva according to mishna lamelech.

Anyway, you seem like you have done this sugya in depth and your insights are appreciated.

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About Me

I went to Skokie Yeshiva for High School, Shaalvim for two years in Israel, YU for a year and a half and then Lander College for Men for a year and a half. I learned for a year in Talmudic University and I finished Med School. Now I am a resident.